MAGAN LAL Vs. STATE

JUDGEMENT

(1.) THE present appeal has been preferred against the judgment and order dated 11/12.11. 1998 passed by Ist Addl. Sessions Judge, Dehradun in S.T. No. 181/1995 State Vs. Magan Lal & others, whereby the learned 1st Addl. Sessions Judge has convicted the appellants -accused Magan Lal, Amar Dev and Nar Dev under Section 304 (Part -I) r/w Section 34 of The Indian Penal Code, 1860 [hereinafter to be referred as the IPC] and each of them was sentenced to ten years' R.I. with fine of Rs. 5,000/ - each and in default of payment of fine, the concerned accused was directed to further undergo six months' R.I.

(2.) ON 17.09.2005, this Court summoned the record from the lower court. In compliance of that order, Officer -in -charge, Record Room (Civil) District Judge's Court, Dehradun vide report dated 7.11.2005 informed that the record of the case has been burnt to ashes in an incident of fire in Record Room (Civil) in the night of 7.12.1999, hence the record cannot be sent. On 4.3.2006, this Court directed the District Judge, Dehradun to get the record of the case reconstructed. However, in compliance thereof, photocopy of judgment has been sent which is not sufficient to decide the present case. Sri Lokendra Dobhal, Adv. for the appellants/accused and Sri M.A. Khan, learned Brief Holder for the State, both have submitted that after passing of the judgment and order dated 11/12.11. 1998 which is under challenge, now the period of about eleven years has expired. They further submitted that now the reconstruction of the record or retrial is also not possible. In a judgment rendered by Allahabad High Court in the case of Aziz Khan Vs. State of U.P. reported in, XXIX 1992 ACC 223, it was held as under: -